KULDIP MAHATON AND ORS. versus BHULAN MAHTO (DEAD) BY L.RS. AND ORS.

Citation: [1994] SUPP. 6 S.C.R. 220 · Decided: 30-11-1994 · Supreme Court of India · Bench: K. RAMASWAMY, N. VENKATACHALA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
D 
E 
F 
G 
H 
KULDIP MAHA TON AND ORS. 
v. 
BHULAN MAHTO (DEAD) BY L.RS. AND ORS. 
NOVEMBER 30, 1994 
[K. RAMASWAMY AND N. VENKA TACBALA, JJ.] 
. Hindu Law-Inheritance 
Widow inheriting property as life estate prior to the Hindu·Womens' 
Right to Property Act-After her death Succession opened to reversioners-
Adopted son making claim-Appellate Court disbelieving his version but 
holdthat he acquired title to the property by prescription-Held; Co-owner 
cannot plead adverse possession against another co-owner in the absence 
. of express plea and proof of hostile title-Division of property and mesne 
profits-Directions issued 
M inherited certain property from her husband B as limited owner 
to enjoy the property for life. She died before the Hindu Women's 
Right to Property Act, 1937 came into force. On her death, succession 
to the said property opened to the reversioners i.e. the first respondent 
and the appellants. They became co-owners of the property. The first 
respondent claimed that he was adopted by M when he was young and 
he was entitle to the possession of the property in his own right as the 
adopted son of B, and that the appellants were not entitled to the 
possession. The Trial Court decreed the suit in favour !Jf the first 
respondent, but the appellate court disbelieved the version. However it 
also dismissed that suit on the finding that the first respondent had 
acquired title to the property by prescription. The second appeal was 
dismissed by the High Court. Hence this appeal. · 
Allowing the appeal, this Court 
HELD : 1. It is not the case of the first respondent as found by the 
appellate court, that after the succession to the reversioner was opened 
on the demise of M, he ousted the appellant from possession of the 
lands or he had set up his own hostile title to the knowledge ~f the 
reversioners, namely, the appellants and· they had acquiesced to that 
exercise of the right. In the absence of such a pleading and proof, 
necessary presumption is that all the co-owners continued to be owners 
of the property .and the first respondent remained in possession of the 
220 
KULDIP MAHATON v. BHULAN MAHTO 
221 
suit property as co-owner. It is settled law that one co-owner cannot A 
plead adverse possession against another co-owner unless there is an 
express plea and proof of hostile title asserted to and remained in 
possession in assertion of that right to the knowledge of the appellants. 
In the absence of such a pleading and proof, the finding of the appellate 
court that the first .respondent had acquired the tiOe to the property by 
prescription is clearly illegal. [222 F to HJ 
B 
2. The appellants claimed possession as owners. They have title as 
reversions of B for undivided half share in the plaint schedule 
properties while the first respondent had half share in the property. 
Therefore, the decree of the trial court, appellate court and the High 
Court are set aside. The suit must be treated to be one for partition. C 
There shall be a preliminary decree in this behalf with mesne profits 
for three years prior to date of suit. The trial court is directed to draw 
the final decree on an application to be made in this behalf by the 
appellants and enquiry into mesne profits should be conducted. 
[223 A, BJ 
3. Since the Legal Representatives of Respondents No~. 4 to 6 were 
not brought on record, the appeal as against them stood dismissed. 
Since they are purchasers from the first defendant, the property sold to 
them stood now allotted to his share 11nd must be computed to the share 
D 
of the first defendant. Equally of the lands sold to other 
defendants/respondents do not bind the appellants. The lands sold to E 
them is in excess of the share of the first respondent. The Trial Court 
should 
work.~out the rights of the purchasers equitably among 
themselYes, determine their liabilities to the appellants. In drawing the 
final decree and allotting the properties, the court should take into 
consideration of quality and value of the property. A decree for 
payment of compensation to the appellants be made. Enquiry into F 
mesne profits be made and a final decree should be passed accordingly 
within one year from the date of making the application. [223 C. DJ 
CIVIL APPELLATE. JURISDICTION : Civil Appeal No. 3246 of 
1984. 
• 
From the Judgment and Order dated 3.8.77 of the Patna High Court in G 
S.A. No. 51of1975. 
S.K. Bagga, Mrs. S. Bagga and Seeraj Bagga for the Appella

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